UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2015 MSPB 52
Docket No. PH-1221-15-0086-W-1
Arthur E. Sherman,
Appellant,
v.
Department of Homeland Security,
Agency.
September 11, 2015
Arthur E. Sherman, Williston, Vermont, pro se.
Laura J. Carroll, Saint Albans, Vermont, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the petition for review, VACATE the
initial decision, and REMAND the case to the regional office for further
adjudication in accordance with this Order.
BACKGROUND
¶2 The following facts appear to be undisputed. The appellant is a GS-13
Contract Specialist for the agency. Initial Appeal File (IAF), Tab 9 at 4. On
May 18, 2012, he reported to the Chief of the Contracting Office that certain
2
agency Contracting Officers were violating Homeland Security Acquisition
Manual (HSAM) § 3032.7002. 1 IAF, Tab 1 at 5, Tab 5 at 4-5 & n.1, Tab 9 at 26.
Specifically, these Contracting Officers were providing Contract Specialists with
presigned stickers to indicate that the Contracting Officers had reviewed and
approved invoices that they had not actually seen. IAF, Tab 1 at 5, Tab 5 at 4-5
& n.1, Tab 9 at 20-22. The agency responded to the appellant’s disclosure by
investigating and ending the practice of presigned stickers, and counseling the
appellant’s first- and second-line supervisors, both of whom had engaged in the
practice. IAF, Tab 1 at 5, Tab 5 at 11, 13, Tab 9 at 26. The appellant’s first- and
second-line supervisors were the rating and reviewing officials respectively for
his performance evaluations. IAF, Tab 8 at 6.
ANALYSIS
¶3 On November 1, 2012, the appellant received a performance evaluation
with a summary rating of “Exceeded Expectations,” which was the same summary
rating that he had received the previous year. IAF, Tab 9 at 4-9, Tab 15 at 16-20.
The following year, on November 1, 2013, the appellant’s first-line supervisor
provided him with a copy of his fiscal year 2013 performance evaluation,
reflecting a summary rating of “Achieved Expectations.” IAF, Tab 8 at 19-24.
However, the performance evaluation had not been signed by either the first- or
second-line supervisor. Id. at 22. The appellant refused to sign the performance
evaluation. Id. at 19. Instead, on November 7, 2013, he emailed his second-line
supervisor and identified himself as the one who had reported the violation of
HSAM § 3032.7002. IAF, Tab 8 at 18.
1
HSAM § 3032.7002 provides that Contracting Officers generally are responsible for
the review and approval of each invoice submitted by a contractor. IAF, Tab 5 at 4 n.1.
3
¶4 On November 18, 2013, the appellant filed a grievance challenging the
performance evaluation on the basis that it was unsigned. 2 IAF, Tab 6 at 8. On
November 29, 2013, the appellant’s first- and second-line supervisors signed the
performance evaluation and returned it to him. Id.; IAF, Tab 7 at 8-12. On
December 30, 2013, the appellant filed a second grievance, arguing that the
performance evaluation included ratings on two performance goals that were
inapplicable to his position. IAF, Tab 6 at 8. On January 30, 2014, the agency
responded by revising the performance evaluation to exclude the two inapplicable
goals from the calculation and reweighing the remaining three goals. Id.; IAF,
Tab 8 at 4-8, 21. This resulted in a slight increase in the raw points contributing
toward the appellant’s summary rating, but still left him in the “Achieved
Expectations” category. IAF, Tab 8 at 5, 21. On March 4, 2014, the appellant
filed a third grievance, this time challenging the January 30, 2014 performance
evaluation. IAF, Tab 7 at 7. The grievance proceeded from Step I to Step III,
being denied at each stage on both timeliness and substantive grounds. 3 IAF,
Tab 6 at 4-15, Tab 7 at 4-5.
¶5 On June 11, 2014, the appellant filed a whistleblower complaint with the
Office of Special Counsel (OSC), alleging that his January 30, 2014 performance
evaluation and the agency’s decision not to grant him a cash award for fiscal
year 2013 were in retaliation for his May 18, 2012 disclosure. 4 IAF, Tab 1
2
The appellant is a union official and was the union representative in at least some of
the grievance and unfair labor practice proceedings described below. IAF, Tab 6 at 7,
13, Tab 7 at 7.
3
The grievance never went to arbitration. IAF, Tab 5 at 18. Instead, on June 12, 2014,
the appellant filed two unfair labor practice charges with the Federal Labor Relations
Authority regarding the manner in which the agency calculated his rating and alleging
reprisal for grievance activity. Id. at 25-28. The record does not reveal whether these
charges have been resolved.
4
It appears that the appellant received a time-off award of 8 hours. IAF, Tab 5 at 27,
Tab 15 at 31.
4
at 13-19. OSC closed its file without taking corrective action, and the appellant
filed the instant IRA appeal. Id. at 1-5, 20. After notifying the appellant of his
jurisdictional burden and taking evidence and argument from the parties, the
administrative judge dismissed the appeal for lack of jurisdiction without a
hearing. IAF, Tab 1 at 2, Tab 10, Tab 18, Initial Decision (ID) at 1, 9. She found
that the Board lacks jurisdiction over the appeal because the appellant made an
election of remedies to grieve the performance evaluation before he filed his
whistleblower complaint with OSC and that he failed to make a nonfrivolous
allegation that his disclosure was a contributing factor in the performance
evaluation. ID at 5-9.
¶6 The appellant filed a petition for review, challenging the administrative
judge’s findings on the two dispositive issues. Petition for Review (PFR) File,
Tab 1. The agency filed a response, PFR File, Tab 3, and the appellant filed a
reply, PFR File, Tab 4.
The appellant made a nonfrivolous allegation that his disclosure was a
contributing factor in his fiscal year 2013 performance evaluation.
¶7 Generally, to establish jurisdiction over an IRA appeal regarding activity
protected under 5 U.S.C. § 2302 (b)(8), an appellant must prove that he exhausted
his administrative remedies before OSC and make nonfrivolous allegations that
(1) he engaged in whistleblowing activity by making a protected disclosure under
5 U.S.C. § 2302 (b)(8), and (2) the disclosure was a contributing factor in the
agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302 (a). Yunus v. Department of Veterans Affairs, 242 F.3d 1367 , 1371 (Fed.
Cir. 2001); Rusin v. Department of the Treasury, 92 M.S.P.R. 298 , ¶ 12 (2002).
Here, it is undisputed that the appellant exhausted his administrative remedies
before OSC and that he made a nonfrivolous allegation that he made a protected
disclosure on May 18, 2012. ID at 9; PFR File, Tab 3 at 6. The remaining
question is whether the appellant made a nonfrivolous allegation that his
disclosure was a contributing factor in the personnel actions at issue.
5
¶8 To satisfy the contributing factor criterion at the jurisdictional stage of the
case, the appellant need only raise a nonfrivolous allegation that the fact of, or
the content of, the protected disclosure was one factor that tended to affect the
personnel action in any way. Mason v. Department of Homeland Security,
116 M.S.P.R. 135 , ¶ 26 (2011). One way to establish this criterion is the
knowledge/timing test, under which an employee may nonfrivolously allege that
the disclosure was a contributing factor in a personnel action through
circumstantial evidence, such as evidence that the official who took the personnel
action knew of the disclosure, and that the personnel action occurred within a
period of time such that a reasonable person could conclude that the disclosure
was a contributing factor in the personnel action. Id. A disclosure that occurs
after the personnel action at issue was taken cannot be considered a contributing
factor in that personnel action. Id., ¶ 27.
¶9 The administrative judge found that the agency first issued the appellant’s
fiscal year 2013 performance evaluation on November 1, 2013, but that the
appellant failed to make a nonfrivolous allegation that any agency official who
influenced his performance rating knew about his disclosure until November 7,
2014. ID at 8-9. The appellant, however, argues that his performance evaluation
was not completed until January 30, 2014, which was after his second-line
supervisor knew about his disclosure. 5 PFR File, Tab 1 at 4-7. We must resolve
whether the performance evaluation had been completed prior to November 7,
2014, and was awaiting implementation, or whether it was merely contemplated
5
The appellant also asserts that many people knew about his May 18, 2012 disclosure
prior to November 1, 2013, and that his first- and second-line supervisors were likely
among them. PFR File, Tab 1 at 5-6. This conjecture is unsupported by any record
evidence, and we find that it does not amount to a nonfrivolous allegation that either
supervisor knew about the appellant’s disclosure before he emailed his second-line
supervisor on November 7, 2013. See Kahn v. Department of Justice, 528 F.3d 1336,
1341 (Fed. Cir. 2008) (setting forth the standard for nonfrivolous allegations and
observing that they may not be based on “unsubstantiated speculation”).
6
and in preparation before the appellant’s second-line supervisor became aware of
the disclosure. See Fickie v. Department of the Army, 86 M.S.P.R. 525 , ¶¶ 8-9,
11 (2000) (remanding an appeal because, in part, the appellant’s removal was
merely contemplated and in preparation by the relevant agency officials when
they learned of his disclosure). If the performance evaluation was completed on
November 1, 2013, and was only waiting to go into effect when the appellant’s
second-line supervisor learned about the disclosure, then the disclosure could not
have been a contributing factor in the performance evaluation. See Horton v.
Department of the Navy, 66 F.3d 279 , 284 (Fed. Cir. 1995), superseded by statute
on other grounds as stated in Day v. Department of Homeland Security,
119 M.S.P.R. 589 , ¶¶ 14, 18 (2013) (addressing what constitutes a
protected disclosure).
¶10 We find that there is conflicting evidence on this issue. On the one hand,
the appellant’s rating in each of the applicable performance goals and
competencies remained unchanged between the November 1, 2013 evaluation and
the January 30, 2014 evaluation, as did his supervisor’s explanation for each of
these ratings. IAF, Tab 8 at 5, 7-8, 21, 23-24. On the other hand, the number of
elements upon which the appellant was rated did change, as did their relative
weights and ultimately the overall raw score for the appellant’s summary rating.
Id. at 5, 21. The time period covered by the January 30, 2014 evaluation is also
2 months shorter than that covered by the November 1, 2013 evaluation. Id. at 4,
20. Furthermore, the appellant alleges on review that his supervisor was still
seeking and receiving basic data about his fiscal year 2013 performance after
November 7, 2013. PFR File, Tab 1 at 5.
¶11 We cannot resolve this issue without weighing the conflicting evidence,
and we therefore find that the appellant has made a nonfrivolous allegation that
the decision underlying his performance evaluation was not final prior to
November 7, 2013. See Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325 , 329
(1994) (in determining whether the appellant has made a nonfrivolous allegation,
7
the Board may not weigh evidence and resolve conflicting assertions of the
parties). Coupled with the timing of the January 30, 2014 performance evaluation
in relation to the appellant’s second-line supervisor learning about the disclosure
on November 7, 2013, we find that the appellant has made a nonfrivolous
allegation under the knowledge/timing test that his disclosure was a contributing
factor in the performance evaluation. See 5 U.S.C. § 1221 (e)(1); Swanson v.
General Services Administration, 110 M.S.P.R. 278 , ¶ 12 (2008) (finding an
interval of 2 to 3 months sufficiently close to satisfy the timing element of the
knowledge/timing test); Pasley v. Department of the Treasury, 109 M.S.P.R. 105 ,
¶¶ 19-20 (2008) (finding the knowledge/timing test satisfied when the appellant’s
supervisor gave him a poor performance evaluation after learning of
his disclosure).
The appellant’s election to grieve his performance evaluation divests the Board of
jurisdiction over that personnel action.
¶12 Under 5 U.S.C. § 7121 (g), an individual who is covered by a collective
bargaining agreement and who believes that he has suffered reprisal for making
protected disclosures may elect not more than one of three remedies: (1) an
appeal to the Board under 5 U.S.C. § 7701 ; (2) a grievance filed pursuant to the
provisions of the negotiated grievance procedure; or (3) the procedures for
seeking corrective action from OSC. McCarty v. Environmental Protection
Agency, 105 M.S.P.R. 74 , ¶ 10 (2007). An employee shall be considered to have
elected the negotiated grievance procedure if he timely filed a grievance in
writing in accordance with the parties’ negotiated procedure. Id. Whichever
remedy is sought first is deemed an election of that procedure and precludes
pursuing the matter in either of the other two fora. Scalera v. Department of the
Navy, 102 M.S.P.R. 43 , ¶ 9 (2006).
¶13 We find that the appellant elected to grieve his fiscal year 2013
performance evaluation, thereby foreclosing the Board’s jurisdiction over that
personnel action. See Giove v. Department of Transportation, 89 M.S.P.R. 560 ,
8
¶ 10 (2001) (under section 7121(g), the Board lacks jurisdiction over the appeal
of an employee who timely elected a negotiated grievance procedure), aff’d,
50 F. App’x 421 (Fed. Cir. 2002). Specifically, on November 18, 2013,
December 30, 2013, and March 4, 2014, he filed grievances regarding his fiscal
year 2013 evaluation. IAF, Tab 6 at 8, Tab 7 at 7. These filings were all prior to
the appellant’s June 11, 2014 OSC whistleblower complaint. IAF, Tab 1
at 13-19. Therefore, no matter on which of these dates the agency completed the
performance evaluation, it is undisputed that the appellant first filed a grievance
of that personnel action under negotiated grievance procedures.
¶14 On review, the appellant admits that he grieved the performance evaluation
before he filed his complaint with OSC. PFR File, Tab 1 at 8. He argues,
however, that this did not constitute an election of remedies for purposes of
5 U.S.C. § 7121 (g) because he did not raise whistleblower reprisal as an issue in
his grievance. 6 PFR File, Tab 1 at 9. We disagree. The Board has not
interpreted 5 U.S.C. § 7121 (g) to allow an employee to escape the election
requirement by basing his case in various fora on different theories. Rather, the
Board looks to the forum in which the personnel action was first challenged,
under whatever theory, to determine which election the employee made. See,
e.g., Delaney v. U.S. Agency for International Development, 80 M.S.P.R. 146 , ¶ 9
(1998) (the Board lacks jurisdiction over an appeal from a personnel action if the
affected employee already has elected to challenge that action through another
means under a statute requiring an election of just one avenue of redress); Peltier
v. Department of Justice, 79 M.S.P.R. 674 , ¶ 13 (1998) (same).
6
The appellant also appears to argue that his grievances challenged the performance
evaluation processes and procedures, whereas his whistleblower complaint challenged
his final rating. PFR File, Tab 1 at 8-9. We find that this is a distinction without a
difference because the appellant, in both cases, ultimately sought to change his rating.
Id. at 8; IAF, Tab 1 at 16.
9
¶15 Under a similar election provision in 5 U.S.C. § 7121 (d), the Board found
that, even when an appellant’s prior grievance did not contain a discrimination
claim, his filing of the grievance still constituted an election of remedies for
purposes of that provision. Jones v. Department of Justice, 53 M.S.P.R. 117 ,
119-20, aff’d, 983 F.2d 1088 (Fed. Cir. 1992) (Table); see generally Agoranos v.
Department of Justice, 119 M.S.P.R. 498 , ¶¶ 13-16 (2013) (noting the similarity
between the election provisions of 5 U.S.C. § 7121 , subsections (d), (e), and (g)).
Like 5 U.S.C. § 7121 (d), 5 U.S.C. § 7121 (g) provides that “[a]n aggrieved
employee affected by a prohibited personnel practice” covered under this
subsection may elect only one remedy. Both subsections list the applicable menu
of remedies, and both provide that the timely filing of a grievance is an election
of that forum. 5 U.S.C. § 7121 (d), (g)(4)(B). There is no basis for us to interpret
subsection (g) any differently than the Board interpreted subsection (d) in Jones.
We find that, for purposes of 5 U.S.C. § 7121 (g), an employee may be deemed to
have elected a remedy regardless of whether he raised a prohibited personnel
practice in his filing. The operative question is not which prohibited personnel
practices, if any, the employee raised in his first filing, but rather which
personnel actions he challenged. To allow a single personnel action to be
challenged in multiple fora under different theories would undermine the benefits
of consistency and administrative efficiency that the election provisions provide.
¶16 The appellant also alleges that he did not conclude that he was being
retaliated against for whistleblowing until after he filed his Step III grievance of
his January 30, 2014 performance evaluation, when he suffered further
mistreatment by management. PFR File, Tab 1 at 9; IAF, Tab 6 at 7. We find
that the factual circumstances underlying the appellant’s whistleblower complaint
were present and known to him when he elected to grieve his performance
evaluation. See IAF, Tab 8 at 18. The subsequent events that prompted the
appellant’s belated conclusion that he had been subjected to whistleblower
reprisal do not invalidate his prior election.
10
¶17 Finally, we note that, for an election of a grievance process under 5 U.S.C.
§ 7121 (g) to be valid, the grievance must have been timely filed. 5 U.S.C.
§ 7121 (g)(3)(B), (4)(B). Although the agency denied the appellant’s grievance in
part as untimely, it nevertheless reached the merits of the grievance and denied it
on substantive grounds as well. ID at 7; IAF, Tab 6 at 5-6, 11-12, Tab 7 at 5.
Under these particular circumstances, we find that the agency effectively waived
the timeliness issue and that, notwithstanding the grievance’s purported
untimeliness, the appellant made a valid election. See Smith v. Alvarez,
898 F. Supp. 2d 1057 , 1062-63 (N.D. Ill. 2012) (finding that the exhaustion
requirements of the Prison Litigation Reform Act of 1996 were met where the jail
administration made substantive rulings on the merits of the plaintiff’s prison
grievance at each stage of review, effectively waiving the deadline); Continental
Illinois National Bank & Trust Co. of Chicago v. United States, 39 F. Supp. 620 ,
623-24 (Ct. Cl. 1941) (by considering and deciding upon a claim for refund
prematurely filed before payment of tax, the Commissioner of Internal Revenue
effectively waived any objection which might have been made to its
premature filing).
The appellant made a nonfrivolous allegation that his disclosure was a
contributing factor in the agency’s decision not to grant him a cash award.
¶18 The appellant alleged before OSC and the administrative judge that the
agency’s decision not to grant him a cash award for fiscal year 2013 was the
product of whistleblower reprisal, but the administrative judge did not address
this claim in her initial decision. IAF, Tab 1 at 5, 16. The appellant renews his
claim on review. PFR File, Tab 1 at 7. A decision regarding a cash award is a
personnel action. 5 U.S.C. § 2302 (a)(2)(A)(ix); see Hagen v. Department of
Transportation, 103 M.S.P.R. 595 , ¶ 13 (2006) (finding that an agency’s denial
of a cash award given to other employees was a personnel action).
¶19 The appellant has alleged that his supervisors had discretion to grant him
this award. PFR File, Tab 4 at 9. Further, the Standard Form 50 processing what
11
appears to be a time-off award for the appellant’s fiscal year 2013 performance
reflects an approval date of December 16, 2013. IAF, Tab 15 at 31. We find that
the appellant has made a nonfrivolous allegation that his disclosure was a
contributing factor in the agency’s decision not to grant him a cash award. See
Jessup v. Department of Homeland Security, 107 M.S.P.R. 1 , ¶ 10 (2007)
(“nonfrivolous allegation” is a low standard of proof and requires only a
minimally sufficient showing). The record does not reveal how performance
awards at the agency are calculated, whether there is any discretion involved, or
whether the calculation is based purely on the performance rating. In other
words, it is not clear whether a decision about the appellant’s performance rating
predetermined a decision about any cash award for which he might have been
eligible. Even if the agency’s decision about the appellant’s fiscal year 2013
performance rating was final prior to November 7, 2013, its decision about the
cash award may not have been. In any event, we lack sufficient evidence to
conclude that the performance evaluation was final prior to November 7, 2013.
See supra ¶ 11. We therefore find that the appellant has made a nonfrivolous
allegation through the knowledge/timing test that his disclosure was a
contributing factor in the agency’s decision not to grant him a cash award. 7
The record is not clear as to whether the appellant made a valid election to grieve
the agency’s decision not to grant him a cash award.
¶20 On review, the appellant argues that he did not receive a cash award after
his numerical rating for fiscal year 2013 improved in his January 30, 2014
evaluation. PFR File, Tab 1 at 7. In his March 4, 2014 Step I grievance of the
evaluation, the appellant did not challenge the agency’s decision not to grant him
a cash award. IAF, Tab 7 at 7. He raised the issue for the first time in his Step II
7
In light of this finding, we do not address the appellant’s additional allegations that he
offers to meet this burden. PFR File, Tab 1 at 10-11. On remand, the appellant may
have an opportunity to present evidence to meet his burden to prove contributing factor
and to rebut the agency’s defense.
12
grievance, filed on April 8, 2014, when he requested relief in the form of “a
year-end bonus/award for 2013 no less than the bonus/award [he] received at the
end of 2012.” IAF, Tab 6 at 13. Although the Step II and III grievance decisions
acknowledged the appellant’s request, neither of them addressed the substance of
the issue. Id. at 4-6, 11-12.
¶21 Neither the parties, nor the administrative judge, addressed the issue of
whether the appellant properly challenged the denial of a cash award through the
negotiated grievance process, and we lack sufficient information to make a
finding on the issue at this stage of the appeal. For instance, the record does not
contain a copy of the relevant provisions of the collective bargaining agreement,
and we do not know whether the agreement prevents new issues from being raised
for the first time during Step II. It also appears that the appellant may have been
untimely with this issue to the extent that he filed his Step II grievance more than
35 days after the date of the agency’s decision. IAF, Tab 6 at 13, Tab 15 at 31.
If the appellant did not timely and properly raise this issue in his grievance, he
cannot be said to have made an election to grieve it for purposes of 5 U.S.C.
§ 7121 (g). See 5 U.S.C. § 7121 (g)(4)(B); McCarty, 105 M.S.P.R. 74 , ¶ 10.
We provide the following guidance for the administrative judge on remand.
¶22 The first issue to be decided on remand is whether the appellant made a
binding election under 5 U.S.C. § 7121 (g) to grieve the agency’s denial of a cash
award. 8 To answer this question, the administrative judge will need to determine
whether the appellant timely and otherwise properly raised the issue in the
negotiated grievance process.
8
This issue should be addressed first because it is jurisdictional in nature, and the
appellant has otherwise established jurisdiction over his appeal. See Schmittling v.
Department of the Army, 219 F.3d 1332, 1336-37 (Fed. Cir. 2000) (finding that, in an
IRA appeal, the Board may not assume that the appellant has established jurisdiction
over his appeal, and then proceed to reject his whistleblower reprisal claim on the
merits; rather, the Board must first address the matter of jurisdiction before proceeding
to the merits of the appeal).
13
¶23 If the administrative judge finds that the appellant did not elect to grieve
the cash award decision, then she should grant the appellant his requested hearing
and decide whether he proved by preponderant evidence that his disclosure was
protected and that it was a contributing factor in the cash award denial. See
5 U.S.C. § 1221 (e)(1); Mattil v. Department of State, 118 M.S.P.R. 662 , ¶ 11
(2012). Relevant factors include whether the performance evaluation was final
on November 1, 2013, and was merely awaiting implementation, or became final
at a later date; and whether performance awards were automatic based on the
rating, or discretion was involved. If the appellant proves his prima facie case,
then the administrative judge should determine whether the agency proved by
clear and convincing evidence that it would have made the same cash award
decision even in the absence of the appellant’s disclosure. See 5 U.S.C.
§ 1221 (e)(1)-(2); Chambers v. Department of the Interior, 116 M.S.P.R. 17 , ¶ 12
(2011).
ORDER
¶24 We remand this appeal to the regional office for further adjudication in
accordance with this Opinion and Order.
FOR THE BOARD:
______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.